Ellingburg v. United States · ¶45
This modern framework is incongruous with the historical purpose of Ex Post Facto Clauses. The modern framework, because of how much it turns on legislative labeling and semantics, allows a legislature to manipulate when the protection will apply. Under the first test, for example, a legislature might be able to impose a retroactive $10,000 fine on some previously innocent conduct—such as drinking coffee or going to the gym—if it labeled the law “civil,” placed it in the civil code, expressed a nonpunitive purpose, omitted protections for the accused, and let non-traditional prosecutors (such as a health agency) enforce it. See supra, at 176– 177. Under the second test, the legislature might be able to prevail by aggravating the fair-notice problems that motivate the Clauses, such as by having its retroactive law impose strict liability and then applying it only to previously innocent…Read in context ›
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